TCS Daily

Botoxic Shock in Tinseltown

America was once a land of unlimited enterprise. Then we became a nation of irrepressible self-indulgence. And now we are a country whose people "do their own thing" -- often to absurd lengths -- and then find, with the help of trial lawyers, someone else to take the blame when such "things" allegedly go wrong. So America became the land of unlimited litigation.

San Francisco is the national and global capital when it comes to protecting, by statute, the right to be extremely different. It's a city that offers legal protection to the morbidly obese when they feel victimized by those who express disapproval of excess fat. San Francisco's municipal administration even guaranteed medical benefits for city employees who want to change their sex.

But when it comes to loopy legal efforts, no place in our country can compare with Los Angeles. Perhaps the most laughable LA legal twist in recent times involves Botox, a medical treatment developed from botulinum, the toxin that produces the disease botulism.

California thus seems destined to be known for bizarre lawsuits rather than for the administration of equal justice, and for its practitioners of transformative medicine rather than its distinguished researchers in information technology, as well as the more traditional, hard sciences.

Millions of people have been treated with Botox -- enough patients that it piled up more than $400 million in sales for its producer, Allergan, Inc., in 2002. Mostly, it is used to alleviate muscular problems. But Botox can also make the human face look younger and tighter by causing the skin to "freeze."

Indeed, Botox has become so popular with the elite classes that even Sen. John Kerry, D-Mass., and frontrunner for the Democratic presidential nomination, is rumored to have submitted to the needle. However, Sen. Kerry certainly hasn't lost his wrinkles, so perhaps that is a rumor intended to firm up his support among Hollywood liberals rather than a treatment to do the same for his facial muscles.

The treatment was a subject of joy to its users, and curiosity for the rest of us, until September 11, 2001, when Irena Medavoy, wife of Hollywood power Mike Medavoy, had an appointment with Dr. Arnold Klein, a dermatologist whose has treated Michael Jackson and Liz Taylor, among other stars. Mr. Medavoy is the former head of Orion Pictures and other movieland entities.

The Twin Towers came down, the Pentagon was attacked, a plane taken over by hijackers crashed in Pennsylvania... but Mrs. Medavoy claims to have suffered equal or worse trauma from the Botox injections she got from Dr. Klein. In her case, the treatment was intended to alleviate headache.

Mrs. Medavoy has filed suit against Dr. Klein and Allergan, claiming that Botox caused her to become very sick. She claimed symptoms beyond fever, hives and difficulty breathing, to include an inability to fulfill her duties as a spouse. She now asserts that Botox, which she took in order to cure migraines, produced new and worse migraines.

Botox is temporary in its effects, and those who are happy with it typically go for repeated injections. While Mrs. Medavoy's post-treatment complaints are said by her to have been worse at some times than at others, her and her husband's enthusiasm for litigation did not diminish.

Their suit alleges that Dr. Klein's use of Botox to relieve migraines constituted an "off-label" practice. Dr. Klein's lawyer says the practice was legitimate as a clinical trial. Mike Medavoy also claims damages for the loss of his wife's "comfort, companionship and intimacy." The Medavoys' lawyers have called for punitive damages for misconduct and fraud, along with compensation that should run into many millions of dollars, if the suit is won.

Irena Medavoy has the potential to become one of the most unpopular figures to appear in a Southern California court in recent times -- which is saying something. The rest of her set in Hollywood still loves Botox and will not want it taken away because of one angry plaintiff. Moreover, her rush to the needle on 9/11 will make her seem less than devoted to her adopted country (she's a former Russian swimsuit model.)

It would be interesting to ask Irena Medavoy how she perceives the difference between the former Soviet Union and the present Southern California. In both, the court system lent itself to abuse by the powerful to fulfill their whims. But in Russia, the abuse of justice fostered crude repression. Here it generates picturesque entertainment.

Some have found Mrs. Medavoy's complaints of discomfort and loss unconvincing. She indignantly recited, to Vanity Fair magazine, the list of invitations she turned down because of her headaches. But missing a few parties hardly supports a case for millions in punitive damages.

Once again, however, a major corporation finds itself under the eagle eyes of people who believe law, and trial lawyers, exist to satisfy their idiosyncrasies. Allergan has taken the position that more publicity, rather than less, will help its case. It intends to fight the suit through to complete victory and clearing of its product's reputation.

That in itself is noteworthy, since corporations have tended to prefer settling such cases to litigating them. But since many years of Botox treatments, given to legions of patients, have produced nothing derogatory beyond this absurd chapter in Los Angeles history, Allergan is probably correct in taking such a position. Even in a country where pharmaceutical companies have been forced to pay, and pay again, for bad decisions by consumers, Mrs. Medavoy's Botox case may win her nothing but laughs, at her expense.

Stephen Schwartz is a frequent TCS contributor. He last wrote for TCS about Iraq and Yugoslavia.